F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 27 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-1390
v.
MIKE MEIENBERG,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-CR-179-D)
Sean Connelly, Assistant United States Attorney, District of Colorado, (Thomas
L. Strickland, United States Attorney, District of Colorado; Craig Wallace,
Assistant United States Attorney, District of Colorado; Tim Neff, Assistant
United States Attorney, District of Colorado, with him on the brief), Denver,
Colorado, for Plaintiff-Appellee.
Paula M. Ray, Denver, Colorado, for Defendant-Appellant.
Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
Defendant Michael Meienberg appeals his convictions in the United States
District Court for the District of Colorado for one count of sale of a firearm to an
underage person, 18 U.S.C. § 922(b)(1), fourteen counts of sale of a firearm in
violation of state law, 18 U.S.C. § 922(b)(2), and one count of conspiracy to sell
firearms in violation of state law, 18 U.S.C. § 371. Jurisdiction to consider
Defendant’s appeal arises under 28 U.S.C. § 1291. Defendant argues that all or
some of his convictions should be overturned because of (1) prosecutorial
misconduct in closing arguments, (2) error by the district court in allowing
unauthenticated computer printouts into evidence, and (3) the facial
unconstitutionality of 18 U.S.C. § 922(b)(2). Upon review, this court affirms the
convictions.
II. DISCUSSION
A. Prosecutorial Misconduct
During closing arguments the following exchange occurred:
PROSECUTOR: Now, I told you in my opening we had that burden
[to prove the guilt of Defendant beyond a reasonable doubt], didn’t I.
Of course we do. I acknowledge it. I acknowledge it freely. That’s
how our system works. Well, I believe we’ve met the burden.
DEFENSE COUNSEL: Objection, Your Honor that’s improper.
PROSECUTOR: I believe the government has –
THE COURT: Hold on.
DEFENSE COUNSEL: Objection, Your Honor, improper to state
what he believes.
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PROSECUTOR: All right. Let me restate. I believe the government
has met its burdens. I’m not asking to believe me personally, I’m
asking you to believe what the evidence shows.
DEFENSE COUNSEL: Still improper, Your Honor.
THE COURT: Sustained.
The government concedes that misconduct occurred when the prosecutor
expressed his personal belief as to the Defendant’s guilt. See United States v.
Young, 470 U.S. 1, 7-8 (1985) (discussing the impropriety of prosecutors
expressing their personal beliefs). Such comments can leave the impression that
the prosecutor is basing his conclusion on evidence not presented to the jury and
also may induce the jury to rely on the prosecutor’s personal conclusion rather
than an independent review of the evidence. See id.
In some circumstances, prosecutorial misconduct may be so severe that a
new trial is required. See United States v. Gabaldon, 91 F.3d 91, 94 (1996). This
court reviews the denial of a motion for mistrial for an abuse of discretion. See
id. Although Defendant quickly objected to the prosecutor’s conduct, Defendant
did not request a mistrial or seek any further relief. “Where there has been no
motion for a mistrial or new trial, the district court has not exercised its
discretion, and therefor it is meaningless to look for an abuse of discretion.” Id.
In such circumstances, the
prosecutor’s improper statement to the jury is harmless unless there
is reason to believe that it influenced the jury’s verdict. In assessing
whether the misconduct had such an impact, we consider the trial as
a whole, including the curative acts of the district court, the extent of
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the misconduct, and the role of the misconduct within the case . . .
[T]o warrant reversal, the misconduct must have been flagrant
enough to influence the jury to convict on grounds other than the
evidence presented.
Id. (quotation omitted). In this case, the prosecutor’s conduct was not “flagrant
enough to influence the jury to convict on grounds other than the evidence
presented.” Id. (quotation omitted). The prosecutor eliminated much of the
prejudice to Defendant by explaining that “I’m not asking to believe me
personally, I’m asking you to believe what the evidence shows.” In addition, the
district court instructed the jury that arguments of counsel were not evidence.
Thus, while this court confirms its disapproval of a prosecutor asserting his
personal belief as to a defendant’s guilt, the impact of the prosecutor’s improper
statements in this case were negligible. See id. at 95.
B. Computer Documents
18 U.S.C. § 922(b)(2) makes it a federal crime to sell a firearm in violation
of state law. At the time of the events underlying this lawsuit, Colorado required
gun dealers to perform certain tasks before selling a handgun. See Colo. Rev.
Stat. § 12-26.5-103 (repealed 1999). Dealers were required to contact the
Colorado Bureau of Investigation (the “Bureau”) for purposes of conducting an
instant background check on the potential purchaser and, if the purchaser was
approved, dealers were required to record the approval number for the transaction.
See id. § 12-26.5-103(2)(d)(I)(A), (B) (repealed 1999).
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In order to demonstrate that Defendant had often neglected to contact the
Bureau for an instant background check and instead recorded phony approval
numbers, the government introduced the printouts of computerized records
reflecting the approval numbers issued by the Bureau to Defendant’s firearms
business. Defendant objected to the printouts based on a lack of authentication.
The district court overruled the objection, allowing the printouts into evidence.
Defendant renews his authentication challenge on appeal. “Evidentiary decisions,
such as findings concerning the authenticity of a document, rest within the sound
discretion of the district court and are reviewed for abuse of discretion.” United
States v. Henry, 164 F.3d 1304, 1309 (10th Cir. 1999). There is an abuse of
discretion when the district court’s decision is “arbitrary, capricious, whimsical,
or unreasonable.” Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir.
1999) (quotation omitted).
Before evidence is admissible it must be authenticated. See Fed. R. Evid.
901(a). This requirement is met by “evidence sufficient to support a finding that
the matter in question is what its proponent claims.” Id. “The rationale for the
authentication requirement is that the evidence is viewed as irrelevant unless the
proponent of the evidence can show that the evidence is what its proponent
claims.” United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir.
1991).
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Defendant argues that, in order to authenticate, the government was
required to demonstrate the accuracy of the information contained in the
printouts. Because the government’s witness could not verify the accuracy of the
information, Defendant argues that the records were not authenticated. Defendant
relies on Rule 901(b)(9) of the Federal Rules of Evidence. Rule 901(b) provides
numerous nonexhaustive examples of proper authentication. Rule 901(b)(9), one
of these examples, states as follows:
(9) Process or system. Evidence describing a process or system
used to produce a result and showing that the process or system
produces an accurate result.
Defendant’s argument is without merit. In order to authenticate the
printouts, the government had only to present “evidence sufficient to support a
finding that the matter in question is what its proponent claims.” Fed. R. Evid.
901(a). The computer printouts reflected the Bureau’s record of approval
numbers assigned to Defendant’s firearms business. The government’s witness
testified to this fact, thus satisfying the minimal authentication requirement:
“[The computer printouts are] a record of the transaction[] number[s] issued for
[Defendant’s business], all the transactions during each separate exhibit is a
month period of transactions issued [by the Bureau to Defendant’s business]. See
Fed. R. Evid. 901(b)(7) (providing that a public record can be authenticated by
evidence that the record “is from the public office where items of this nature are
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kept”); see also Fed. R. Evid. 901, Advisory Committee Notes , 1972 Proposed
Rules, note to Subdivision (b), Example 7 (“Public records are regularly
authenticated by proof of custody, without more. The example extends the
principle to include data stored in computers and similar methods . . . .” (citation
omitted)). “Any question as to the accuracy of the printouts, whether resulting
from incorrect data entry or the operation of the computer program, as with
inaccuracies in any other type of business records, would have affected only the
weight of the printouts, not their admissibility.” United States v. Catabran, 836
F.2d 453, 458 (9th Cir. 1988).
Defendant’s reliance on Rule 901(b)(9) is misplaced. The computer
printouts were not the result of a “process or system used to produce a result”;
they were merely printouts of preexisting records that happened to be stored on a
computer. In any event, the government did offer circumstantial evidence that the
computer printouts accurately depicted the approval numbers issued to
Defendant’s business. Thus, the district court did not abuse its discretion in
allowing the printouts into evidence.
C. Constitutionality of § 922(b)(2)
Section 922(b)(2) provides:
It shall be unlawful for any licensed importer, licensed
manufacturer, licensed dealer, or licensed collector to sell or
deliver—[] any firearm to any person in any State where the purchase
or possession by such person of such firearm would be in violation of
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any State law or any published ordinance applicable at the place of
sale, delivery or other disposition, unless the licensee knows or has
reasonable cause to believe that the purchase or possession would not
be in violation of such State law or such published ordinance[.]
Defendant claims § 922(b)(2) is unconstitutional, advancing two arguments.
First, Defendant claims that § 922(b)(2) exceeds Congress’ power to regulate
interstate commerce. Second, Defendant maintains that § 922(b)(2) runs afoul of
the federalism concerns expressed in Printz v. United States, 521 U.S. 898 (1997).
It appears that no other court has addressed these questions.
The Supreme Court has “identified three broad categories of activity that
Congress may regulate under its commerce power.” United States v. Lopez, 514
U.S. 549, 558 (1995). First, Congress can regulate the use of the channels of
interstate commerce. Second, Congress can regulate the instrumentalities of
interstate commerce and persons or things in interstate commerce. Finally,
Congress can regulate those activities that substantially affect interstate
commerce. See id. at 558-59.
Section 922(b)(2) regulates firearms transactions; such transactions are, by
their nature, commercial in character. Compare id. at 551-68 (striking down 18
U.S.C. § 922(q), which criminalized mere possession of a firearm within a place
the individual reasonably knew was a school zone). To the extent the statute
applies to transactions across state lines, the affect on interstate commerce is
obvious. See United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir. 1995) (“The
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interstate flow of machineguns not only has a substantial effect on interstate
commerce[,] it is interstate commerce.” (quotation omitted)). As explained
below, even those firearms transactions which take place between a dealer and
buyer within the same state substantially affect interstate commerce.
In Huddleston v. United States, the Supreme Court addressed 18 U.S.C. §§
922(a)(6) and (d)(1). See 415 U.S. 814, 833 (1974). These statutes make it a
crime for any person to lie to a licensed gun dealer in connection with the
acquisition of a firearm and also make it a crime for a gun dealer to knowingly
sell a firearm to a person convicted of a crime punishable by imprisonment for
more than one year. See id. at 815-17. The Supreme Court stated in Huddleston:
“Congress intended, and properly so, that §§ 922(a)(6) and (d)(1) . . . were to
reach transactions that are wholly intrastate, as the Court of Appeals correctly
reasoned, on the theory that such transactions affect interstate commerce.” Id. at
833 (citation and quotation omitted).
Section 922(b)(2), like the statutes under consideration in Huddleston,
applies to wholly intrastate firearm transactions as well as interstate firearms
transactions. In considering Congress’ constitutional power to regulate intrastate
transactions, the aggregate interstate affect of the regulated intrastate transactions
is considered. See Wickard v. Filburn, 317 U.S. 111, 127-28 (1942). Well-
documented congressional findings indicate that the market for firearms is a
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national market. See, e.g., Huddleston, 415 U.S. at 833; Wilks, 58 F.3d at 1521.
Under these circumstances, the aggregate of intrastate firearms transactions has a
substantial affect on interstate commerce. United States v. Cardoza, 129 F.3d 6,
13 (1st Cir. 1997) (“[T]he supply and demand for handguns in any given state will
‘substantially affect’ interstate commerce in handguns by causing the weapons to
move across state lines.”). Because firearms transactions, even those which are
purely intrastate, substantially affect interstate commerce in firearms, § 922(b)(2)
is a valid exercise of Congress’ power to regulate interstate commerce.
Defendant also claims that § 922(b)(2), by incorporating state law into the
definition of a federal crime, runs afoul of the federalism principles expressed in
Printz. The Supreme Court’s decisions in Printz and New York v. United States
stand for the principle that the federal government cannot “commandeer” the
executive and legislative branches of state governments into service for the
purpose of implementing federal law. See Printz, 521 U.S. at 933; New York v.
United States, 505 U.S. 144, 166, 187 (1992).
The federalism concerns expressed in Printz and New York do not apply to
§ 922(b)(2). By making a violation of state law a federal crime, the federal
government has not commandeered the states into enforcing federal policy. Quite
to the contrary, § 922(b)(2) can be seen as a cooperative effort by the federal
government to assist the states in enforcing state policies. There are both old and
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recent examples of such cooperative efforts between the federal government and
the states. See 18 U.S.C. § 1955(b)(1)(i) (defining an “illegal gambling business”
as one which is in violation of state law); Leonard D. White, The Federalists 401,
403 (1956) (cataloging historic examples of cooperation between the states and
federal government). Because § 922(b)(2) does not involve an attempt to use the
states as mechanisms to enforce federal regulation, the political accountability
concerns expressed in both Printz and New York do not apply. See Printz, 521
U.S. at 929-30; New York, 505 U.S. at 168-69.
Defendant notes that the purpose of § 922(b)(2) was to “encourage States to
publish and circulate statewide and local firearms regulations.” H.R. Rep. No.
1577 (1968), reprinted in 1968 U.S.C.C.A.N. 4419-20. It is well established,
however, that Congress can use its valid constitutional powers to encourage
particular behavior from the states. In New York, the Supreme Court stated:
This is not to say that Congress lacks the ability to encourage a
State to regulate in a particular way . . . . Our cases have identified a
variety of methods, short of outright coercion, by which Congress
may urge a State to adopt a legislative program consistent with
federal interests.
505 U.S. at 166. To the extent that § 922(b)(2) seeks to encourage states to pass
firearms laws, it does so in a manner far short of coercion. Thus, it does not
matter that the purpose of § 922(b)(2) might be to encourage particular behavior
from the states. Defendant’s federalism arguments are rejected.
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III. CONCLUSION
For the reasons stated above, Defendant’s convictions are AFFIRMED.
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